In re McIlvaine

15 Abb. Pr. 91

• Court: New York Supreme Court
• Decided: November 15, 1862
• Status: Published

Opinion

Leonard, J.

All the facts were before the court when the order was made. The application was opposed, and called out every fact and objection that could be made. Hnder these circumstances a reference was unnecessary to enable the court to ascertain what was proper to be done in the premises.

The statute conferring discretion upon the court in a proper ■ case to direct a disposition of the real estate of an infant for his support, maintenance, and education, is very broad. It is whenever it shall satisfactorily appear that such disposition is necessary and proper. (3 Rev. Stat., 275, § 105, 5 ed.; 2 Ib., 195, §175.)

The previous section authorizes the court to proceed in a summary manner, by reference, to inquire into the merits of the application. The reference is not necessary to give the court jurisdiction. That was acquired by the presentation of the petition showing a case existing wherein an order of reference or other proceeding under the statute might be taken. (Sedgwick on Stat. and Const. L., 370.)

The provision for a reference is not mandatory. It is not “of the essence of the proceeding.” The court may proceed summarily without a reference, if the facts are made to appear so as to show a clear case, where the disposition of the estate of the infant is necessary and proper for any of the purposes indicated by the statute. Such I conceive to be the case here presented.

I advise the affirmance of the order.

Ingraham, P. J., and Peckham, J., concurred. ;